Gawker and The Washington Post: A case study in fair use

Washington Post reporter Ian Shapira wrote a whimsical profile of a dubious “business coach” who specializes in understanding Generation Y. (I think that includes me, but who knows.) Gawker, as is its wont, blogged about the piece, quoting extensively from the Post. Now, Shapira has penned a thoughtful and balanced essay on whether Gawker’s appropriation of his work should be considered copyright infringement. It’s exactly the situation at stake in recent threats by The Associated Press regarding the “protection” of their content.

Whatever your personal opinion about U.S. copyright law and how it should apply on the Internet, judges who consider the question are obliged to weigh four standards of fair use, including the extent of republication, whether the reuse is itself unique, and how it all affects the commercial market for the original content. In that spirit, here’s some data to consider from Shapira’s essay and my own research:

My estimates for cost and revenue are very rough, back-of-the-envelope calculations based on salaries and advertising prices. I should also note that the vast majority of Gawker’s quotes from the piece are themselves quotes from the business coach, which may affect your view of the appropriation. (Who owns a quote?) Meanwhile, it’s been suggested that the long-held standards of fair use don’t work well on the Internet, and in a wonderful post, C. W. Anderson recently posited four new standards for digital fair use.

But putting aside the broader debates for a moment, in this one particular case, given the available information, does Gawker’s use of the Post article constitute copyright infringement — and should it?

Of course, there’s the next layer of comparison, which is that the WaPo article (like many news articles) was devoted to presenting, summarizing, contextualizing, analyzing, and making fun of the work of someone else — in this case, the business coach, Anne Loehr. By my quick count, the original WaPo story quoted 490 words from Loehr — twice as many as Gawker quoted from WaPo. Did WaPo break the law quoting her? (Of course not.)

Shapira asks Gawker at the end of his piece: “If you sell ads against your posting, can you cut The Post a check?” Well, The Post certainly sold lots ads against a story that wouldn’t exist without that business coach, that quoted that business coach very extensively, Will they cut Loehr a check? (Of course not.)

There are lots and lots of people in this country, and WaPo used its curatorial skills to find one who would make an interesting story for its readers. Just as there are lots and lots of news stories in this country (or in the Post), and Gawker used its curatorial skills to find one that would be interesting to its readers.

I’m sympathetic to all parties here, but aggregation moves in a lot of different directions. It wasn’t invented by Nick Denton or Arianna Huffington. It’s always been a huge part of how news organizations have worked.

http://mediamemo.allthingsd.com/ Peter Kafka

There is indeed a continuum when it comes to aggregation, but it’s facile to equate a Wapo story where the reporter researched the subject, conducted interviews, crafted a narrative (plus editing, photos, etc) with a Gawker summarization. Whether Gawker is doing so appropriately is a different question, not necessarily a clear-cut one. And yes, Wapo does plenty of aggregation of its own. But this isn’t one of those cases.

http://justinmclachlan.com Justin

@Josh — your point is taken, but isn’t quite exact. The Post likely had the coach’s express or implied consent. You also don’t obtain copyright protection for off-the cuff comments made in front of a group or to a reporter. A work must be “fixed in a tangible medium of expression” to receive copyright protection. If you speak from prepared marks, that’s different.

As for this post, you’ve missed a significant portion of the U.S. Code that deals with fair use. Before it even gets to those criteria, it says this: “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

You’ll not that “criticism” “comment” and “news reporting” are purposes that the Gawker post almost unarguably fit into. Okay maybe news reporting stretches the credulity of some when it comes to Gawker, but not me.

I fear the AP and Gatehouse — who’ve been pushing antiquated theories of copyright and fair use that stretch legal theory and precedent to its breaking point — have given people like Shapira (whom, I take it, have no legal background) to write things that are simply ridiculous, legally unsupported and show a striking naivete toward legal concepts that, lets face it, even judges and lawyers have difficult interpreting.

What it seems to me, is that he’s more incensed over the attribution of his work than he is that his work was quoted. That has nothing to do with copyright infringement. It’s a question of fairness, maybe, but everyone who read that story on Gawker new were the real material came from.

http://neverneutral.wordpress.com/ EP

Since Gawker is linking and quoting specifically to the original article, isn’t this positive for WaPo? If it hadn’t linked and attributed the source, that would be a different story, wouldn’t it? (apologies for the pun).

http://www.codybrown.name Cody Brown

Well for one, and as others have point out, most of their quotes are from the subject in question, not the washington post’s words. Isn’t she speaking on a kind of public record when she agrees to an interview?

Regardless, I’ve seen Gawker copy and paste more than this and I can imagine a more explicit example.

If you look at the numbers this appears to be un-just but you have to realize there’s no one forcing the Washington Post to spend 2 days and $750 on this article. It’s their decision and their risk, if they don’t do it, Gawker won’t care, they’ll just find someone else to link. If you have a stable business model getting linked is a flattering sign that what you say matters to someone else. If your not, you are going to be desperately looking for profit in any corner. And in that case, suing Gawker isn’t a sustainable business model.

http://www.niemanlab.org/ Joshua Benton

Certainly my comparison isn’t perfect. But Justin, I’m sure you’d agree that a subject’s “express or implied consent” isn’t required for someone to be quoted in a news story. And while in this case the quotes were spoken rather than written, news stories quote substantially from written, copyrighted material all the time.

It reminds me of the time when the AP decided you had to pay $12.50 to quote even five words of an AP story. When Mike Arrington wrote something critical of that policy, AP sure had no problem quoting his blog post about it. They didn’t drop a check for $12.50 to Techcrunch.

I’m completely open to discussions of what should count as ethical behavior in linking and aggregating — what’s the right amount to quote, what added value you should add, etc. But I just get really, really uncomfortable when the question turns to legally prohibiting something like this Gawker post by manipulating copyright law. That’s what I can’t stomach. As Justin says, the reporting and comment clauses in U.S. copyright law don’t just apply to big newspapers.

http://www.pbs.org/mediashift Mark Glaser

The same thing happened to me with Gawker quoting from a story I did on Second Life for MediaShift. Here’s their story:

In this case, Gawker got about 60,000 views on their story, and I got about 2,000, so it was weighed much more in their favor. I’ve used it as a teaching point in talks to students about the balancing act between getting promotion from blogs and wondering if they are leeching off of you. Not really sure of the answer yet either ethically or legally, though I suspect fair use covers them.

But this practice is not just happening on blogs. How many important stories that are broken by the Wall Street Journal then aped completely by Reuters, AP and other news outlets that borrow quotes, passages and just paraphrase the original story? It happens every day and you never hear the Journal complaining about it, even though the new story contain no original journalism but is just a re-reading of the WSJ story.

http://Lavrusik.com Vadim Lavrusik

I agree with Mark on this one. I think there have been much more extreme cases of content being pulled from stories to blogs. And though that isn’t a reason for the practice to be considered “fair” in journalistic terms, it would likely be ruled as fair use based on amount of information used. However, other factors should be considered, such as linking, etc.

One thing I’s like to know from Shapira is how many views he got via Gawker. He claims in his piece that they got 9,500 and that they were second the largest referrer to his story but fails to give a total value.

Something else that surprised me is his claim that it took him a day to write the 1500 piece. That seems pretty excessive – at university I could put together 1500 words in a couple of hours. Do professional journalists really take this long to craft their pieces? I ask because Zach has calculated the cost to WaPo on this basis.

http://www.medicalmommas.com dikeough

I think the WaPo should be thanking Gawker–and perhaps cutting a check– for giving additional legs to a story that would’ve otherwise ended up at the bottom of the litter box, so to speak.

If newspapers wish to stay in this game, they must buy up an established web design / online marketing company in their area and then continue to sell that service to all the business in their area.

Avenue A / Razorfish? should have been a NYT company a LOOOOOOONG time ago. It may be too late now, but I can say with certainty that charging for general interest news directly or indirectly (advertising), is a loser. It always has been.

http://www.ecopolity.com Sergio Abranches

My observation coincides with those of Mark Glaser. I’ve seen this same blog-newspaper/newspaper-blog content pulling and not only on the US media. It iseems to me it is current practice with a global reach.

Ben Fritz

Here’s one very obvious difference between Gawker summarizing the Post article and the Post profiling the woman in question: Anne Loehr AGREED to be interviewed. The Post did not agree to be excerpted.
I’m not saying newspapers should always have to agree to be excerpted. But it’s clearly complicated when the excerpt is substantial and the citation/linkage is minimal. There’s nothing complicated about an interview subject who explicitly agrees to be reported on without compensation.
I think it’s also worth noting that when newspapers and wire services tee off each other’s work without doing their own reporting (or succeeding at attempting that reporting), they always saw “so-and-so reported” in the lede. Gawker (apparently, I can’t get the page to load) only cites the Post at the very end. Once again, an attempt to conflate the practices of “old” media with “new” does not succeed.

http://www.dailypatricia.com patricia

I don’t think a world where it’s illegal to link to other people’s articles would be that bad, or is that far off.

I know for a fact that reproducing press releases 80% or so verbatim is (or was) common practice in Mexican journalism. My first job was writing press releases for the Sala Nezahualcoyotl in Mexico City. Several times I saw my writing (including the one I did for the concert programs) signed by someone else in major newspapers. This was before newspapers went online, so at least they had to re-type the whole thing…

That’s really interesting, Zach. Grueskin’s suggestion that links that appear on top will get clicked on more is not verified by this data, for example.

It also shows that readers “got” that the point of your post as Gawker’s post rather than Shapira’s original article (and that in any case we could go back to that, probably from Gawker’s post, as I know I did). On top of that one could argue that editorialized links (“whimsical”; “thoughtful and balanced”) do have an impact on a reader’s decision to click on a link or not.

There are more links on your piece you don’t mention. I suppose that rather than assuming that readers were not interested on those links, it’s possible to think that we already had –or thought we had– that context, so clicking on them was not deemed necessary to understand the post.

ALC

Everyone seems to be framing this debate in terms of copyright law and fair use, but copyright law as it stands is a terrible fit for the problem Shapira’s complaining about. Either we need to reform copyright law (as many have suggested) or we need to be looking beyond copyright for a better solution. Perhaps the law is already equipped to handle the “Gawker problem” – the Associated Press sued All Headline News not long ago using hot news law in New York walked away with a settlement. Maybe all newspapers need to do is band together to make hot news federal law as some have already proposed and then start suing. In the end, the only way to get these blogs to cut the Washington Post a check is to get some legal leverage. Clearly copyright law as it stands clearly can’t provide the leverage that’s needed.

http://neverneutral.wordpress.com/ EP

Last week I attended a workshop on the Google Books Settlement at Berkman. The phrase “obsession with litigation” came up (I think it was during Professor Lawrence Lessig’s presentation– I don’t have my notes here right now) and in my opinion the suggestion was it is an obstacle rather than a solution. I think it is a question of ethics –even of mere netiquette if you will– rather than a copyright or legal issue. We can’t spend our life suing each other…

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